JUDGMENT : ( 1. ) THIS appeal is directed against the judgment and decree dated 11th March, 1982, passed by the learned llnd Additional Judge to the Court of District Judge, Mandsaur, in Civil Original Suit No. 13-A of 1980. ( 2. ) THE appeal arises out of a suit instituted by the plaintiff-respondent against the defendant-appellant for recovery of a sum of Rs. 11,000/-by way of damages for malicious prosecution. The plaintiffs case was that on a report lodged by the defendant with the police that on 7th April 1972, the plaintiff and three other persons had entered into a conspiracy to assault the defendant and had intimidated him, the plaintiff and Gulam Mohammad, hakim and Akbar were charge sheeted in the Court of Judicial Magistrate first Class, Mandsaur for offences punishable under sections 506-B and 120-B. Indian Penal Code. It was further averred that the plaintiff and the other accused were convicted by the trial Court but were acquitted on appeal and the application for grant of leave preferred by the State against the order of acquittal was rejected by the High Court. The plaintiff further averred that the prosecution commenced at the instance of the defendant was malicious, with a view to blackmail the plaintiff and the plaintiff was entitled to recover from the defendant damages amounting to Rs. 11,000/-for malicious prosecution. The suit was resisted by the defendant inter alia on the ground that the plaintiff had not been falsely implicated in the criminal case and that the prosecution was not without any reasonable or probable cause. The defendant also denied that he was actuated by any malice. The defendant, therefore, contended that the plaintiff was not entitled to any amount by way of damages. ( 3. ) ON the basis of the pleadings of the parties, the issues framed by the trial Court and the findings given thereon are as follows: In view of the aforesaid findings, the triad Court partly decreed the plaintiffs suit and held that the plaintiff was entitled to receive from the defendant a sum of Rs. 2,850/- by way of damages for malicious prosecution. Aggrieved by the judgment and decree passed by the trial Court, the defendant has preferred this appeal. Partly aggrieved by the judgment and decree passed by the trial Court, the plaintiff has also preferred cross-objections, ( 4. 2,850/- by way of damages for malicious prosecution. Aggrieved by the judgment and decree passed by the trial Court, the defendant has preferred this appeal. Partly aggrieved by the judgment and decree passed by the trial Court, the plaintiff has also preferred cross-objections, ( 4. ) SHRI Chaphekar, learned counsel for the appellant, contended that the trial Court erred in holding that the prosecution of the plaintiff was without reasonable and probable cause and was actuated by malice. It was urged that the plaintiff had neither pleaded nor proved facts, on the basis of which malice could be inferred. Learned counsel for the appellant contended that the plaintiff was not, therefore, entitled to any damages and the trial Court erred in awarding Rs. 2,850/-to the plaintiff by way of damages. On behalf of the plaintiff, it was urged that the real prosecutor was the defendant, that the prosecution was actuated by malice and was without reasonable or probable cause. It was further contended that the amount of damages awarded by the trial Court was too low and that the plaintiff was entitled to the amount claimed by him. ( 5. ) IN view of the contentions raised on behalf of the parties, the first question that arises for consideration in this appeal is whether the defendant had acted maliciously and without reasonable and probable cause. A further question also arises, in the event of the dismissal of the appeal, as to whether there is a case for increase in the amount of damages awarded to the plaintiff. ( 6. ) BEFORE I proceed to appreciate the contentions advanced on behalf of the parties, it is necessary to state few facts, which are no longer in dispute. The plaintiff resides at Mandsaur while the defendant is a stamp-vendor at Mandsaur. The relations between the plaintiff and the defendant at one stage were extremely cordial, as is evident from the letter Ex. D-25 admittedly written by the plaintiff to the defendant on 10-9-1970. In that letter, the plaintiff had expressed that he would for ever be grateful to the defendant for all that he had done for the plaintiff. The defendant made a report Ex. P-1 to the Superintendent of Police, Mandsaur, complaining that on 7-4-1972, at 7 A. M. , Hakim, Akbarkhan and Gulam Mohammad came to the house of the defendant and after intimidating him, demanded a sum of Rs. The defendant made a report Ex. P-1 to the Superintendent of Police, Mandsaur, complaining that on 7-4-1972, at 7 A. M. , Hakim, Akbarkhan and Gulam Mohammad came to the house of the defendant and after intimidating him, demanded a sum of Rs. 4,000 / -. In that report, the name of the plaintiff was not mentioned. After investigation by the police, the three persons named in the report ex. P-1, namely, Hakim, Akbarkhan and Gulam Mohammad were put up for trial along with the plaintiff for offences punishable under sections 120-B and 506-B Indian Penal Code. The learned Judicial Magistrate First Class, mandsaur convicted the plaintiff and the other accused; but on appeal, the plaintiff and the other accused were acquitted by the learned Sessions judge of the offences charged with. The application preferred by the State seeking leave to prefer an appeal against the order of acquittal was rejected by the High Court, vide order Ex. P-4. Thereafter, the plaintiff instituted this suit claiming damages for malicious prosecution. ( 7. ) DURING the course of hearing, I entertained some doubt on the question as to whether the prosecution of the plaintiff was at the instance of the defendant, in view of the fact that the name of the plaintiff was not disclosed in the report Ex. P-1 as one of the accused. However, the learned counsel for the plaintiff-respondent drew my attention to the written statement wherein the defendant has contended that the name of the plaintiff was omitted through oversight and that he had lodged a report with the police against the plaintiff and other accused. Therefore, the fact that the defendant put the law in motion against the plaintiff, cannot be disputed. The proceedings ultimately terminated in favour of the plaintiff is also not disputed. ( 8. ) NOW, the question for consideration is whether the plaintiff has proved that his prosecution was malicious and without reasonable and probable cause. As held by the Privy Council in Balbhaddar Singh and another v. Badri Sah and another, (AIR 1926 PC 46) the plaintiff has to prove that the defendant invented the whole story as far as it implicated the plaintiff. As further observed by the Privy Council, that is a very heavy onus of proof and unless the plaintiff sustains it, the plaintiff must fail. ( 9. As further observed by the Privy Council, that is a very heavy onus of proof and unless the plaintiff sustains it, the plaintiff must fail. ( 9. ) LEARNED counsel for the plaintiff contended that the findings of the trial Court that the prosecution was without reasonable and probable cause and was malicious should not be set aside unless the findings were found to be perverse. The findings of the trial Court are undoubtedly entitled to great weight. But these findings should have been arrived at after proper appreciation of the facts and law. In the instant case, the trial Court has failed to appreciate that the burden to prove that the defendant had invented the whole story implicating the plaintiff was on the plaintiff The trial Court has held that failure of the defendant to produce reports lodged by him with the police from time to- time goes to show that "the defendant prepared a false case against the plaintiff and sent false reports". The trial Court seems to labour under the notion that the burden to prove that there was reasonable and probable cause was on the defendant. The trial Court failed to appreciate that the burden of proving absence of reasonable and probable cause was on the defendant, who, as observed in salmond on the Law of Torts (Seventeenth Edition at page 415) undertakes the notoriously difficult task of proving a negative. ( 10. ) IT is, therefore, necessary to turn to the evidence on record to find out as to how the plaintiff has discharged the burden placed on him for proving that the prosecution was malicious and was without reasonable and probable cause and that the defendant actuated by malice had invented the whole story implicating the plaintiff. ( 11. ) NOW, the charge framed against the plaintiff in the criminal trial, vide Ex. P-2, was that the plaintiff and three other persons had entered into a conspiracy and in pursuance of that conspiracy, they bad threatened the defendant on 7-4-1972 that he would be done to death. To prove this charge, the defendant and his witnesses were examined. The learned judicial Magistrate relied on the testimony of the defendant and his witnesses and found that the charge against the plaintiff was proved beyond reasonable doubt and the plaintiff and the other accused were accordingly convicted. To prove this charge, the defendant and his witnesses were examined. The learned judicial Magistrate relied on the testimony of the defendant and his witnesses and found that the charge against the plaintiff was proved beyond reasonable doubt and the plaintiff and the other accused were accordingly convicted. On appeal, the learned Sessions Judge found as follows: The learned Sessions Judge held that the various reports alleged to have been made by the defendant to the authorities against the plaintiff were not proved because the prosecution had not produced the original reports but had instead produced only copies of those reports attested by the Reader to the Sub-Divisional Magistrate. The learned Sessions Judge held that the true copies were not admissible in evidence. The learned Sessions Judge noted that the name of the plaintiff was not mentioned in the report Ex. P-1 and he also held that the identity of accused Akbar, Gulam Mohammad and hakim was also not established beyond reasonable doubt. The learned sessions Judge, therefore, acquitted the accused as, according to him, the prosecution failed to establish the complicity of the accused in the crime. ( 12. ) NOW, it is true that from the fact that the learned Judicial magistrate had convicted the plaintiff, an inference cannot be drawn as a matter of law that there was reasonable and probable cause. The following observations in Solmond on the Law of Torts (Seventeenth Edition at page 418) are pertinent:- "that it is not enough in itself to establish a reasonable or probable cause that the plaintiff was committed for trial or even that he was convicted by a Court at first instance and subsequently acquitted on appeal. This seems good sense, for, though these facts would be weighty evidence of a reasonable and probable cause, they should not be conclusive. " Therefore, the fact that the plaintiff was convicted by a Court at first instance, though not conclusive, will have a bearing on the question as to whether there was reasonable and probable cause. ( 13. ) NOW, what are the facts which have been brought on record for establishing that the defendant did not have reasonable and probable cause and that the entire story of the defendant implicating the plaintiff was a fabrication. ( 13. ) NOW, what are the facts which have been brought on record for establishing that the defendant did not have reasonable and probable cause and that the entire story of the defendant implicating the plaintiff was a fabrication. The plaintiff deposed that the defendant wanted to recover some amount from the plaintiff and as the plaintiff did not pay that amount, the defendant had threatened him that the defendant would falsely implicate the plaintiff in some criminal case. In the cross-examination, the plaintiff denied his acquaintance with Akbar, Hakim and Gulam Mohammad, other accused in the criminal case. He was confronted with a number of documents from the record of the criminal case to show that his brother sampatlal, munim Shyamlal and uncle Mohansingh had played an imperfect part in the criminal case in defending accused Akbar, Hakim and Gulam mohammad. The learned counsel for the plaintiff conceded that the plaintiff should not have denied these facts, well established from the record. The plaintiff was no doubt anxious to show that the other accused in the criminal case were strangers and he could not have conspired with them, but as he had the audacity to deny on oath facts borne out from the record in the criminal case, it would be unsafe, in my opinion, to act on his testimony alone. The plaintiff did not adduce -any evidence whatsoever to corroborate his statement that he was threatened by the defendant that he would be falsely implicated unless he paid the amount to the defendant. If the threat had been real one would have expected that the plaintiff would have approached the authorities to take necessary action against the defendant for having given such threats to the plaintiff and such corroborating evidence would have been adduced to lend assurance to the plaintiffs testimony. The defendant has denied on oath that he had given any threat as alleged or that the story disclosed by him in the criminal case was false. The defendant has denied on oath that he had given any threat as alleged or that the story disclosed by him in the criminal case was false. It is not necessary in this case to decide as to whether the acquittal of the plaintiff was or was not justified All that is necessary in this case is to find out as to whether the plaintiff has brought on record reliable evidence, on the basis of which it could be held that the defendants story in the criminal case was false to the knowledge of the defendant and was invented only with a view to falsely implicate the plaintiff. Apart from the plaintiffs solitary statement already referred to, no other material is brought on record. The plaintiff has thus failed to prove that the defendant was actuated by some improper and wrongful motive in launching the prosecution. The plaintiff has also failed to prove that the defendant did not honestly believe in the imputation, which he had chosen to make against the plaintiff. In these circumstances, the trial Court erred in holding that the plaintiff had proved that his prosecution was without reasonable and probable cause and was actuated by malice. The plaintiff, therefore, is not entitled to any amount by way of damages, as claimed by him. ( 14. ) FOR all these reasons, the appeal is allowed and the cross-objections are dismissed. The judgment and decree passed by the trial court are set aside and the plaintiffs suit is dismissed. In the circumstances of the case, parties shall bear their own costs throughout. Appeal allowed.